(SS) Quintero v. Comissioner of Social Security
1:13-cv-00478
E.D. Cal.Sep 29, 2014Background
- Anabel L. Quintero applied for DIB and SSI alleging disability from May 29, 2007, due to bilateral total knee replacements, depression/anxiety, and migraines; ALJ denied benefits and Appeals Council denied review; district court review followed.
- Medical records show bilateral knee replacements in 2007 with ongoing knee pain, ambulation with a cane noted intermittently, and treating orthopedist Dr. Cash documenting varying function from “excellent mobility” to later complaints of looseness and pain.
- Plaintiff treated for migraines with medications (Fioricet noted) and a consultative psychologist (Dr. Gauch) diagnosed migraine headaches; treatment notes reference migraines repeatedly from 2006–2011.
- ALJ found severe impairments of status-post bilateral knee replacement, obesity, anxiety, and depression; excluded migraines as a severe impairment, assigned an RFC for sedentary work with occasional postural limits and "fair" mental abilities, and relied on VE testimony to find other work available.
- Plaintiff argued the ALJ erred by (1) failing to find migraines a severe impairment and not addressing migraine-related limitations, (2) failing to include a medically required cane in the RFC/hypothetical, and (3) that new evidence submitted to the Appeals Council (Dr. Cash’s 2012 questionnaire) undermined the ALJ’s decision.
- The district court concluded the ALJ erred by failing to consider migraine evidence at Step Two and remanded for further proceedings; it upheld the ALJ’s treatment of the cane issue but allowed the ALJ to consider the Appeals Council evidence on remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ALJ erred by not finding migraines a medically determinable severe impairment at Step Two | Quintero: record (treatment notes, Dr. Gauch diagnosis, meds, testimony) supports a medically determinable, potentially severe migraine impairment that the ALJ ignored | Colvin: medical evidence does not show migraines significantly limit basic work activities; ALJ found other severe impairments and considered all limitations, so any Step Two omission is harmless | Court: ALJ erred by failing to discuss migraine diagnosis/treatment and plaintiff’s testimony; error not harmless because the record lacks any indication migraines were considered later in sequential evaluation — remand required |
| Whether ALJ erred by excluding a prescribed/medically necessary cane from RFC and hypotheticals | Quintero: treating notes show reliance on a cane and it was prescribed/necessary; omission undermines RFC and VE testimony | Colvin: record lacks a prescription or the detailed medical documentation SSR 96-9p requires; references to cane are observational and conclusory, so ALJ reasonably omitted it | Court: ALJ did not err — record lacks documentation that a cane was medically required (no prescription, no explanation of frequency/terrain/distance); no duty to further develop record absent ambiguity |
| Whether new evidence submitted to the Appeals Council (Dr. Cash questionnaire, 2012) undermines ALJ decision | Quintero: Dr. Cash’s 2012 questionnaire shows greater limitations (need to lie down/elevate legs every 2–3 hours; limited sitting/standing) and is new material evidence warranting relief | Colvin: questionnaire is unsupported by contemporaneous treatment records and inconsistent with Dr. Cash’s earlier notes showing improvement; not sufficient to overturn ALJ | Held: Appeals Council properly added the evidence to the administrative record for review; district court finds the questionnaire unsupported and inconsistent with treating notes and does not by itself undermine ALJ’s findings but permits ALJ to consider it on remand regarding migraines/knee limitations |
Key Cases Cited
- Tidwell v. Apfel, 161 F.3d 599 (9th Cir. 1999) (standard of review — ALJ decision overturned only if not supported by substantial evidence or based on legal error)
- Smolen v. Chater, 80 F.3d 1273 (9th Cir. 1996) (all medically determinable impairments must be considered at later steps even if non-severe at Step Two)
- Lester v. Chater, 81 F.3d 821 (9th Cir. 1995) (ALJ must identify what testimony is not credible and why)
- Molina v. Astrue, 674 F.3d 1104 (9th Cir. 2012) (harmless error standard — error is harmless only if inconsequential to ultimate nondisability determination)
- Osenbrock v. Apfel, 240 F.3d 1157 (9th Cir. 2001) (hypotheticals to VE must include all limitations supported by substantial evidence)
- Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157 (9th Cir. 2012) (new evidence considered by Appeals Council must be treated as part of the administrative record on judicial review)